Today's Show » Federalist 42

Wilkow is correct in that 42 does give some background as to the original intent of the Commerce Clause -- specifically the citing of what worked and didn't work in other parts of the world... Switzerland, Germany and The Netherlands. The question I would have for Wilkow is 'why'?... Madison said that the power to regulate foreign commerce would be 'incomplete' without the additional power to regulate commerce between the States. Again, why? .... Well, the answer is also in Federalist 42 -- Without a federal government with the power to regulate commerce between the States, their charges would fall on the makers (importers) of the product and, inevitably on the consumers... which would cause 'interruptions of the public tranquility' -- it would lead to a less efficient economy, as Madison pointed out... So, what I draw from Federalist 42 is that the "Commerce Clause", by design, was meant to give the Congress the ability to protect the national economy from the things that threaten it. The #1 threat today is the choking cost of healthcare, which is, by anyone's standards, threatening our economy -- costs are ten times what they were 30 years ago, far outpacing inflation... Healthcare costs continue to outpace national income.... In the past twelve years alone, healthcare insurance costs have grown 113%... A good portion of personal bankruptcies in America are related to healthcare costs, ... and healthcare spending in the US is now almost 18% of out total economy... I don't think your argument can be that the federal government CAN'T use the Commerce Clause to push the PPACA.... That's what it appears to be for...

crossofcrimson2 years, 11 months ago

I think the problem with this view isn't so much bound up in the (current) positive legal interpretation of Article 1, Sections 8 & 9. The last 125 years (roughly) of legal precedent has brought us to the prevailing interpretation. The issue brought up by the "original intent" crowd is a meta-political discussion about the constitutional framework altogether - although I don't think they realize it or really try to frame it that way. At least part of the purpose of positively defining and delegating federal power is that you conversely bind it. And despite Hamilton's (I think, ultimately, correct) objections to the inclusion of the Bill of Rights, I would hope that's something that isn't lost on the common people. We've moved to a point where the boundaries of that body are so broad and ethereal that simply asking what they "can't" do is not a rhetorical question anymore. In fact, given yours (and others) justification of the new health care mandate through the commerce clause I'm tempted to say that, if that indeed stands, legally, then there really isn't much of which I don't see the government being able to claim power to do. In fact, and I'm not trying to be hyperbolic, a complete top-down fascistic model of centralized economic control and cartelization would be completely in line with such an interpretation as long as there was so much as feigned concern given any given peril(s) that might be said to plague an economy without said controls. Americans (particularly poor Americans) also spend a substantial portion of their incomes on housing, food, fuel, transportation, loans, and a wide variety of other (much-needed) goods and services. Are we to pretend that these very real expenses don't pierce the thin veil of your legal justification for the mandated purchase of pre-paid health care plans (which is what medical insurance has slowly turned into, by the way)? Again, this doesn't even begin to touch on criticisms of some of the rough political analysis of the health care issue(s) you've incorporated; including a citing of GDP-based consumption without deference to per-capita wealth differences, varying elasticities within the market of health products and services, and their interplay with the marginal utility of those products and services for actors here in the United States; as well as a concern for why costs that "are ten times what they were 30 years ago" have diverted almost all talk towards subsidization and a general reallocation of resources as opposed to a more accute attention towards very large and real factors that are effectively constraining supply and competition. At any rate, the more general pint being addressed here still comes back to a question of scope with regards to government power as defined by the constitution. If conservatives are serious about keeping government restrained, they're going to have to explore options outside of the realm of constitutional edict. In some ways, I think, they're in a bit of denial. They claim that a large part of the significance of the constitution is its restriction of government, and yet here they are unwittingly outraged by its inability to do just that. There's nothing magical about the document; nor its interpretors. Saying otherwise is simply tilting at windmills. It's usually at this point where, if I'm talking to a conservative, they begin to look like they would be all too happy to bury a bullet in my cranium. But there's little use in denying what has been happening and what continues to happen with regards to our beloved constitution. Spooner still, in my opinion, put it best in "No Treason", ---Inasmuch as the Constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; and is, moreover, such an one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. Nevertheless, the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize. He has heretofore written much, and could write much more, to prove that such is the truth. But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.---

marnesdad2 years, 11 months ago

There are two things that make me disagree with the notion that if the individual mandate is upheld, all hell breaks loose with government mandates... 1) Healthcare is unique. Housing, food, fuel, transportation, loans --- none of these are given free of charge to those who can't pay both by law AND by moral code. If someone shows up in need of healthcare, providers are required by law (in almost all cases) to provide care, whether the recipient has the ability to pay or not. And, even if it wasn't required by law, the provider is bound by his/her oath to provide that care... The same cannot be said of housing, food, fuel, etc... This, combined with the overwhelming costs associated with healthcare on taxpayers, places healthcare in a class by itself as a threat to our economy. 2) Government is of the people... Our electoral process of representative government IS the limitation on the commerce clause. John Marshall said this -- "The wisdom and discretion of Congress, their identity with the people, and the influence their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments." ...... The "conservative argument" begins and ends with "that's unconstitutional" -- with the 'why' being because "that's not what the commerce clause means"... They can't understand (or won't try to understand) that even the original intent argument, like the Constitution itself, is up to interpretation. I think I pointed that out in my OP.

crossofcrimson2 years, 11 months ago

With regards to your first point, my argument isn't so much that hell will inevitably break loose - but rather that it plunges the final stake into the heart of whatever was believed to be inherently "limiting" with respect to the constitution. Health care is indeed a unique issue (as are the others I listed), but not in exactly the way you're framing it. We certainly do give many of those things "free of charge to those who can't pay both by law and moral code." In fact I'd argue the former presupposes the latter. The primary difference between such reallocations with regards to health care and other services is that we allow (legally) for such provisions ex ante...which does create a unique problem, as you point out. But insofar as that unique arrangement presents a larger national concern than any other part of the economy is largely a matter of heavily qualified opinion. Economic concerns span the gamut, from infrastructure to the service sector to manufacturing to insurance to banking to housing to fuel to transportation; each fraught with a myriad of avenues to bring the country (economically) to its knees. So while the health care issue is certainly a unique one, I don't believe the particular characteristics you point to ultimately bring it any more economic gravity than these other things. And there are certainly no discernable legal qualifiers to differentiate between them at any rate - just opinions on a floating scale of import. Watch gas prices hit $10.00 a gallon in the U.S.A. and tell me those legal justifications wouldn't hold just the same. And, again, we have no real discussion about actually containing aggregate costs. No discussion about elasticity of health care as a function of wealth. No real talk about the many ways in which the government (unintentionally I'm sure) has set the rules of the health market in a way that benefits providers and payors over consumers. Then again, these are separate arguments. The point remains that the perceived importance of any major part of the economy is largely a function of political whim. Unique as you believe health care to be, there's nothing, legally, to keep politicians or the electorate from making tangential, if not parallel, arguments about these other sectors. With regards to your second point, you've elucidated both the reason for their (conservatives) concern and the folly of holding the constitution as resembling anything meaningful. If the constitution as such is completely open to a judicial interpretation which is, in kind, checked by the electorate, then the constitution serves no purpose as a check on government power or the "electorate" which acts through it. Which, to me, is just as well. We've been moving steadily towards a fervently nationalistic brand of federalism since the ball was put in motion (with the possible caveats of one or two administrations that worked in the other direction). I think we should scrap the constitution, and finally do away with the facade that there is some kind of structurally imposed balance between the central government, states, and the people. We could go ahead and have a flat-out national election (we're already half-way there), do away with the Senate, and scrap the formative (original) portion of the constitution. We can keep the amendments I guess (except the 9th and 10th) - that seems to be a pretty good guideline for the electorate's conception of (negatively defined) governmental power. Again, I think Spooner really nailed it...and that was back before we started getting incredibly inventive with our interpretations. The constitution is not a magical document. It really is simply a matter of how those in power (and apparently the electorate) wish to interpret it...and nothing could be more indicative of that than the constant partisan division of SCOTUS rulings. It simply doesn't hold the kind of importance conservatives imagine it to. If anything, it proved to be a hinderence...to itself.

marnesdad2 years, 11 months ago

That's just it -- I think that there still are (and always will be) limits to what we can and can't do... But, those limits are set and maintained by the people we elect to represent us. The law that includes this mandate didn't hurtle through space and come crashing into a 907 page pile in DC... WE wrote it. It is a product brought to us by the people we sent to Washington. I think we're all acknowledging parts of the same thing --- the system is broke. You're pointing that out... the conservatives are whining about what breaks it all the time... and I'm arguing on behalf of a course within the broken system...

crossofcrimson2 years, 11 months ago

Of course law in general, up to and including the constitution, is a matter of social convention. And as such we can always impose "limits" - whatever that may mean in any particular context. But the limits many believe (including me at one point) are imposed by the constitution are structural in nature. If there are enough people behind something for a long enough time, there are few real obstacles the constitution provides. After all, we have, ultimately, a method to amend the constitution itself should we choose to do so. But part of the function of the constitution is to put barriers in place to prevent what you describe from taking place - a system in which the only real limitations are "self-imposed" by us (through our representatives). That's the whole idea of having a constitution, is it not? To give contour and boundary to the government being chartered? If the "limits" are self-imposed and subject to liberal contemporary interpretations, then the constitution is woefully superficial. It's pretty obvious (to me at least) that this isn't what the founders intended. They feared a majoratarian democracy as much as anything else; which is precisely why they outlined (maybe too ambiguously) federal powers and responsibilities, and made it significantly difficult to make substantial changes. And that's the whole underlying contention of the "original intent" crowd. Limits that are "set and maintained by the people we elect to represent us" are a horribly inadequate proxy (they would argue) for the actual constitutional limitations that are in place and which have (again, they would argue) been completely bastardized and broken by very "generous" and politically motivated interpretations over the decades since their inception. And I generally agree with them to that extent. But the fact that we're even having a national debate over whether this is constitutional or not is something I find quite amazing. And that's why I take it a step further than they do in acknowledging that words on a piece of paper haven't ultimately curved government power (at least not in any aspect that wasn't in concurrent parity with popular political whims at any given point time). To put it bluntly, the system of limitations you describe are precisely what _shouldn't_ have happened because of the constitution, but it's _precisely_ what we actually have at this point. Trying to get back on the path of constitutionalism in this country is akin to trying to un-invent the gun. I sympathize with their frustration(s). If this little experiment in limited government would have worked, I think we'd be in a better place right now (ceteris paribus). But no amount of shitty conservative radio shows are going to put that genie back in the bottle...no offense to Wilkow.

crossofcrimson2 years, 11 months ago

By the way, in case anyone is misreading, I'm actually using "liberal" in a general context; IE, separated from its political connotation(s).

crossofcrimson2 years, 11 months ago

A second caveat - I don't intend to make it look as if the "founders" were all in unison as some group of "small-government" types either...reading Madison or Hamilton will dispel that, in some respects, fairly quickly. I'm referring to the interpretation of constitutional constraints, nonetheless, on a relative basis (temporally).

marnesdad2 years, 11 months ago

Yes, the whole idea of having a constitution is to lay out the ground rules. But, if two people can read the same constitution and both come up with legitimate arguments, that constitution, as it is written, is simply inadequate. Wilkow has an argument, and it sounds perfectly plausible and 'unbreakable'... But, like it or not, and the contrary argument is just as plausible. You talk about trying to un-invent the gun? That's classic... These arguments for what the commerce clause, for example, allows these days simply won't go away even with one of Wilkow's best-ist 'nuh-uh'-based arguments... In fact, these alternate interpretations have been reinforced through the court enough that it almost makes people like Wilkow sound like the unreasonable ones... I think my general point here is specific. I made an argument for healthcare in the context of 'today' -- if this is struck down at THIS point in our history, it would almost seem nonsensical. If it survives, then the legislative process (one of the only parts of the Constitution almost intact) is the only remedy left. That's why I'm saying that the limits are now up to us...

crossofcrimson2 years, 11 months ago

Yeah, I totally get most of what you're laying out here. And, while my sympathies lie with, I suppose, Wilkow's interpretation of the constitution here (and boy do I say that with a huge caveat because I'm just going off of what you've said about his defense), it's just an un-winnable argument (in context). He can always argue to push things back to something more akin to the limitations as they were recognized before some given point, but the fact that he has to argue for that just proves that the constitution did not function in the way he pretends it to...even if it "should" have. Regarding the health care law (specifically), I think you're mostly right - but I do think there's room (even today) for legal argument surrounding the mandate portion. The rest doesn't really seem to be in contention...even among the more conservative judges. The question that is being wrestled with right now (at least publicly) seems to be the impact of the removal of that portion of the law to the whole law itself. There are parts that have nothing to do with the mandate (forcing restaurants to visibly display calorie counts on menu items for instance), but dropping the mandate makes much of the law untenable - at least economically. Then again, I suppose the economic ramifications aren't necessarily the court's concern either. What will be really interesting, I think, is that - if they do strike down just the mandate, and the rest of the law stands - then you will likely see a lot of conspiracy talk start to float to the surface. The sole purpose of the mandate is/was to combat the adverse selection issue(s) prompted by the stripping of insurance companies' rights to refuse or price out potential customers with pre-existing conditions. A lot of people see it as the single linchpin that would keep private insurance viable (and even that is a maybe). But many critics of the bill, before it was passed, believed that SCOTUS would _never_ uphold the mandate portion if it was challenged - and not only that, but rather that the bill's supporters (in and out of the administration) knew that before pushing it. So these conspiratorial critics (and this was back in 2009 mind you) were looking at the whole thing as a legal grenade to tank private insurance and usher in a single-payer system. They would pass the bill into law, the mandate would be summarily struck down before SCOTUS, slowly but surely (because insurance companies cannot refuse or price out the sick now) there would be a growing incentive for more and more people to abstain for seeking coverage until confronted with major illnesses...emptying insurance pools and pushing up premiums until the market for insurance simply becomes unfeasible. I suppose I'm not quite as cynical as the conspiracy-theorists. I actually kind of doubt that these politicians are smart enough or coordinated enough to pull a long-term scheme with so many independent and necessary parts out of their hat...but man...would they be stone-cold geniuses if that were the case. Even I'd have to bow for that performance. In any case, watch out for the conspirators if it happens...they will have a field day. Anyways, that's a whole other story. I see the point you're making now and can't really disagree with it. I don't understand how someone with a show on satellite radio can have a forum that's so dead. The only two people having a conversation here is the hosts most vociferous online critic and some crazy anarcho-capitalist libertarian who hasn't even listened to the show in over a year. That can't be a good sign.

marnesdad2 years, 11 months ago

I can't see the usefulness of the law surviving if the mandate is shot down -- even if the court goes on to rule positively on severability. The point of the law was to save money via controlled costs, and the deal with the insurance companies was the increased business (via the mandate) in exchange for disadvantageous coverage scenarios and lower bids on their participation in the exchanges. If there's no mandate, those bids are coming in a LOT higher due to the myriad of new coverage rules in the law, minus the promise of loads of new business. .... On you point about this being a very well thought out plan to install a single-payer system, that seems, at least to me, a little more genius than these people are capable of... I know that won't stop the theorists, and it surely won't stop people like Wilkow, but if these people did actually concoct this mastery, they are a hell of a lot smarter than Wilkow gives them credit for... .... Lastly, I like Wilkow. He loves his country, appreciates what it gives him, and stands up for what he believes in. Unfortunately, his career isn't going to go anywhere beyond a few hours a day on Sirius and the occasional speaking job at smalltown USA's local NRA functions (oh, then there's kissing Beck's ass)... Despite his own claims, his arguments aren't even structurally sound -- let alone 'unbreakable'... His content is only helpful to people who know less than he does. Which, to this day, I find fascinatingly sad.